Generally, the head of the company is responsible for ensuring compliance with labour regulations. However, they are not always in a position to monitor compliance with the rules.
Indeed, when the number of employees, the geographical location or the volume of activity increases, the head of the company may have to distance themself from certain risky situations. This is why in-house lawyers have, in some conditions, been given the delegation of powers.
In this article, we share with you some key points to correctly understand how to implement the delegation of powers in your company.
What is the delegation of powers?
First essential question... what exactly is the delegation of powers?
Delegation of powers is an organizational technique that consists of the manager (the delegator) transferring some of their 'powers' and therefore his responsibilities, to one or more of his employees (the delegatees).
Above all, it is important to make a clear distinction between delegation of powers and delegation of signature. In the case of a delegation of powers, the head of the company entrusts the delegatee with the representation of the company, within the limits of the delegators powers (i.e. what is provided for in the legal act of delegation of powers).
In the case of a delegation of signature, the head of the company only entrusts the signature of such a legal act in their name. In this case, this person appears as the agent of an individual and not as the representative of the company.
Delegation of powers: what are the advantages?
Where a few years ago it might have been seen as a way of shirking your responsibilities as a manager, the delegation of powers has become essential and is now part of the principles of good management of a company.
Firstly, it gives the company representative the possibility of transferring part of their powers relating to technical, administrative, accounting or financial management to another person, which can make sense when a particular task is closer to certain work functions or roles.
Secondly, if it is well prepared, it acts as an internal control tool and makes it possible to map the risks at company level.
Finally, if it is respected, it allows employees to be supported in their duties by giving them the means to protect the company correctly against the most obvious risks.
Delegation of powers: what are the limitations?
The effects of the delegation of powers are simple: the delegatee is responsible in place of the manager. However, there are certain limits to this delegation.
On the one hand, 100% of the responsibilities cannot be transferred from the manager to the delegatee. On the other hand, in certain cases, the seriousness of the offence is such that it cannot be transferred. Certain responsibilities specific to the function of manager cannot be delegated (liability of the head of the company in principle). The delegator is criminally liable for certain offences such as unintentional injury in the event of an accident.
Finally, the delegator must not interfere in the management of the delegated areas and the delegatee must be given "full power" in these areas.
Delegation of powers: what are the conditions of validity?
The conditions of validity are essentially related to the delegatee, i.e. the person who receives the delegation of powers and, at the same time, the criminal liability.
Firstly, they must have the necessary authority to act in case of necessity, i.e. the power of direction and sanction, in order to take disciplinary measures against an employee who breaks the rules in force in the company (in terms of safety or infringement of the law, for example).
Secondly, they must be technically and legally competent to carry out the assignment. For example, an HR Director must have skills in social law, etc.
Finally, they must have the human and financial resources to commit the company in the event that compliance with the legislation requires a certain amount of investment.
Delegation of powers: how to set it up?
Even if the law does not require it, it's important to provide a written form for the drafting of a legal act in order to keep proof.
Firstly, this agreement cannot result from a collective agreement, a memo or a verbal statement.
Secondly, the document must be clear and mention all the conditions of validity as well as the agreement of the employee concerned.
Finally, the delegatee must be formally informed of the purpose of the delegation without ambiguity, i.e. provide complete and precise information to the delegate in order for it to be considered valid.